Video Game Ban Runs Afoul of First Amendment

When Illinois Gov. Rod Blagojevich proposed "The Safe Games Illinois Act" in 2004, he hailed the bill as "common-sense legislation" to protect children from video games with violent content.

"There's a reason why we don't let kids smoke or drink alcohol or drive a car until they reach a certain age and level of maturity," Blagojevich said. "That's just common sense. And that same common sense should be applied to excessively violent and sexually explicit video games."

But the video game industry saw little common sense in the legislation. Rather it saw the law as a blatant constraint on game retailers' First Amendment rights. The Entertainment Software Association (ESA), a trade group of video game makers, sued in 2004 in federal court to block the bill's enforcement.

The district court's decision striking down the law came as no surprise to the video game industry, which has defeated similar laws in California, Louisiana, Michigan, Minnesota and Oklahoma. But what was surprising was Judge Matthew Kennelly's decision to assess $510,260 in legal fees against Blagojevich's office.

In upholding the district court ruling in December 2006, the 7th Circuit came quickly to the point: "Primarily because we conclude that [the law] is not sufficiently narrowly tailored, we affirm the judgment of the district court."

Regulation Frontier

The recent spate of court challenges to video game bans reflects the evolution of a new niche in First Amendment jurisprudence. In the past, games such as "Frogger" didn't create concerns about violence or prurience. The occasional flattening of an animated frog crossing a busy thoroughfare didn't incite legislators to ban games.

But today's games allow children to guide animated characters, such as football players or police officers, through realistic digital environments. Some of these games, such as the notorious "Grand Theft Auto," allow users to take on the role of characters performing violent criminal acts. Naturally, such games raise parents' and legislators' concerns.

"Ultimately this is part and parcel of the process by which we make First Amendment law," says Gene Policinski, executive director of the Nashville-based First Amendment Center, a free speech education and advocacy center at Vanderbilt University. "Some of these games are going to provoke these kinds of reactions, and legislators will try to write more narrowly focused laws. We're nowhere near the end of that process."

Six states have attempted to legislate against the sale of such video games to children. Federal courts have struck down each of those laws on Constitutional grounds. But the litigation may give state lawmakers clues as to how they should craft future legislation.

The 7th Circuit struck the Illinois law, for example, because the state did not prove that its game ban was narrowly tailored or that other actions short of a ban would have been insufficient to protect minors. The court suggested that a bill to increase awareness of the industry's voluntary rating system might have been as effective as an outright ban--giving lawmakers a clue about how they could regulate video games without raising the First Amendment issues.

Old Standards

At any rate, the fact that new and heretofore unregulated technology is involved does not change one fundamental fact: a state must meet a high standard to ban forms of entertainment, even for children. The 7th Circuit ruling reiterates its previous ruling in American Amusement Machine Association v. Kendrick, that a state can only regulate "indecent" material for minors if it demonstrates that its legislation is narrowly tailored to serve a compelling government interest.

Blagojevich's office did not respond to an interview request, but Paul Smith, lead counsel for the ESA and a partner at Jenner & Block, said the Illinois law simply didn't meet that standard.

"The state tried to argue that playing violent games will lead to violent behavior later on, but there's a First Amendment doctrine that says we're not going to suppress speech because of a supposed tendency to cause bad behavior," Smith says. "Even if there were evidence that violent video games cause violence--and it's not there--it wouldn't satisfy strict scrutiny."